The Ninth Circuit, the Fourth Amendment, and Border Searches:
If federal judges don't like the Justice Department's litigation strategy, should they say so in their opinions? And what kinds of criticisms of DOJ litigation strategy are persuasive? These questions have arisen in an interesting line of Fourth Amendment border search cases.

  First, some background. In recent years, the Justice Department, the Ninth Circuit, and the Supreme Court have been involved in a bit of a tug-of-war over the rules that should govern invasive car searches at the Mexico border. The source of the problem is that drug smugglers have been thinking up more and more creative ways to smuggle drugs across the border inside cars and trucks. Specifically, smugglers often remove parts of a car or truck and put in fake parts that are actually stuffed with drugs. Border agents then need to actually dissassemble the vehicles to find the drugs. Border agents typically select the cars they want to investigate by using trained dogs; the combination of a drug-sniffing dog and a nervous driver may be enough to persuade the border patrol agents that it is worth their time and effort to focus on a particular car.

  The question is, what Fourth Amendment rules should border agents have to follow to disassemble parts of a car at the border? Before the Supreme Court's decision in United States v. Flores-Montano, 541 U.S. 149 (2004), the Ninth Circuit (and a few other circuits, I think) had created a rather complex framework in which some types of steps taken to search and disassemble cars at the border were deemed "non-routine," requiring reasonable suspicion, while other types of steps were considered routine and required no suspicion. The goal was to require reasonable suspicion before the border patrol could take particularly invasive steps.

  The Supreme Court rejected this approach in Flores-Montano, a case involving the disassembly of a gas tank. The unanimous decision of the Court construed "the Government's authority to conduct suspicionless inspections at the border" much more broadly than had the Ninth Circuit, and ruled that it could disassemble a gas tank without reasonable suspicion. In his decision, Chief Justice Rehnquist specifically criticized the Ninth Circuit for creating a doctrinal test that required reasonable suspicion for car searches at the border:
  The Court of Appeals took the term "routine," fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles.
  What difference does it make whether the police can take such steps with reasonable suspicion versus at any time, you may be wondering, given that the government ususally isn't going to bother to disassemble a car without some kind of individualized suspicion? My understanding is that the practical answer is the evidentiary hurdle. If the border agents need to establish reasonable suspicion, they need to document the suspicion and be able to prove it at a hearing in court. When the government's cause is based largely on a dog sniff, the government needs to establish the reliability of that particular dog in each case. If the agents do not need to establish reasonable suspicion, then the issue is one of law and there is no need for a factual inquiry or evidentiary hearing.

  All of this brings us to the latest round in the dispute, the Ninth Circuit's Sept 14th opinion in United States v. Chaudry. In Chaudry, a dog alerted to the presence of narcotics inside a pickup truck at the border. Border agents drilled a small hole in the bed of the pickup trick, revealing that it was a false truck bed stuffed with marijuana. The court recognized that the facts of the case fell within the principle of Flores-Montano, and ruled that the search was constitutional.

  The interesting part of the case is a special concurrence by Judge Betty Fletcher, as well as a shorter concurrence along somewhat similar lines by Judge Fisher. Judge Fletcher's concurrence had rather sharp words about the government's argument that the case was a simple application of Flores-Montano. According to Judge Fletcher, the government was engaging in "game-playing" by requiring the Ninth Circuit to apply the Supreme Court's precedent in Flores-Montano. If I understand Judge Fletcher's position correctly, the Justice Department deserved criticism for asking the Ninth Circuit to apply binding Supreme Court precedent rather than a line of overruled Ninth Circuit cases. The Justice Department probably could have followed the overruled Ninth Circuit cases without jeopardizing its convictions, Judge Fletcher reasoned; as a practical matter, agents were unlikely to go to the trouble of drilling into a pickup truck or dissambling a gas tank unless they already have reasonable suspicion. By refusing to put forward evidence of reasonable suspicion, permitting the Ninth Circuit to rely on its line of cases rather than the Supreme Court's opinion in Flores-Montano, the government had engaged in "game playing."

  Judge Fletcher offered two specific grounds for objecting to the government's strategy. Here's the first:
[S]uch appeals are essentially a request for an advisory opinion, as the dispute over whether or not a particular search may be conducted in the absence of any suspicion is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government's desire to push the envelope to its limits: to find out just how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.
  Am I mistaken, or is this a rather odd argument? The government hadn't filed the appeal, and its winning argument asked the Ninth Circuit to apply a Supreme Court precedent that obviated the need for an evidentiary hearing. This preserved judicial resources at the trial level (no need for a hearing), and presumably made no difference at the appellate level (in that the defendant would have appealed the question of reasonable suspicion rather than the application of Flores-Montano). The fact that Judge Fletcher apparently wanted to approve the government's conduct on a different theory than the government wanted doesn't mean that the government is asking for an "advisory opinion."

  Here is Judge Fletcher's second argument:
  [B]ecause there is ample suspicion in each case, it is difficult for judges to consider the issue cleanly on an unencumbered record. Evidence of probable criminal activity, especially evidence of narcotics detector dog alerts, cannot help but color judges' views of the facts. We inevitably think "harmless error." I must admit that I take comfort in knowing that the border agents in these cases did not rip apart the defendants' cars on a whim. However, were I to decide a case where there is truly no suspicion, and where five or ten exploratory holes are drilled in the exterior walls of a vehicle, I might reach a different result.
  Again, this seems like a puzzling argument. I certainly appreciate Judge Fletcher's candor: If she resolves these cases based on whether she personally feels comfortable with the government's conduct, then I suppose there is nothing wrong with her saying so. And it may explain her objection to the government's argument, too; the government's approach makes it difficult for a judge to translate his or her instincts about what is comfortable into a Fourth Amendment test. The difficulty is that the Supreme Court's unanimous opinion in Flores-Montano seems to foreclose such a free-ranging inquiry. Am I mistaken, or is Judge Fletcher criticizing the government for making it hard to conduct an inquiry that the Supreme Court has instructed lower court judges not to follow?

  Perhaps we would be better off in a world of Judge Fletcher's Fourth Amendment, rather than the Supreme Court's opinion in Flores-Montano. So to be clear, I don't have specific criticism of her substantive approach. But am I right that Judge Fletcher's criticism of the government's litigation strategy is rather weak in light of the Supreme Court's decision? Or am I missing something? Perhaps I am misunderstanding the government's strategy, and perhaps I am misreading Flores-Montano or Judge Fletcher's concurrence? If so, please post a comment and I would be happy to post a correction.

Related Posts (on one page):

  1. DOJ Litigation Strategy.
  2. The Ninth Circuit, the Fourth Amendment, and Border Searches:
Nobody Special:
I think she's complaining about the trio of cases involved that includes both Chaudry and Flores-Montano.

The way I understand it, she's mad that the Justice Department engaged in a bit of law reform litigation of its own, by purposely refusing to prove reasonable suspicion in cases where it could be proved, and then seeking appeals declaring it not needed.

So she's mad that the DOJ decided to try and get her court's decisions overturned, rather than play by the rules she set out for them, in a situation where those rules could, in fact, be played by.

Thus, I see it more as a criticism of the handling of the appeal in Flores-Montano and the posture that brought Chaudry to the court. It's my understanding that these were all initially litigated around the same time, and Flores-Montano just made it to the Supreme Court first.
9.22.2005 5:08pm
42USC1983 (mail):
Great post. I didn't understand her quasi-advisory opinion argument. The defendant appealed the denial of the motion to suppress. Thus, there was an obvious case or controvery before the court. If DOJ had appealed, and then limited their arguments, then should would have justifiably been miffed.

Anyhow, it was telling that the panel did not hold that the searches were unconstitutional. That's a pretty good sign that they knew the Supreme Court would have reversed. So, basically, it seemed like the judge was frustrated with the Supreme Court, and she took it out on DOJ.

(Disclaimer: I love the Ninth Circuit, and it's frustrating to see the Supreme Court reverse the Ninth's usually-excellent Fourth Amendment cases. But I think the judge was wrong to criticize DOJ here.)
9.22.2005 5:21pm
The reason Orin's criticism is misplaced is because Flores-Montano did not hold that any search is permissible regardless of suspicion. It left the door open to a finding that a more destructive test would require some kind of suspicion. The Government is now manufacturing test cases to test the limits of the holding, and that is what the Judges object to. It has nothing to do with an objection to following "binding Supreme Court precedent", as Orin suggests.
9.22.2005 5:24pm

I'm not sure I understand. You're right about Flores-Montano, of course, but why do you think the government is "manufacturing test cases to test the limits of the holding"? Are you suggesting that the government would have declined prosecution in normal circumstances, but decided to prosecute this case just so it would create a test case to explore the rule? And if so, why would they do that in the Ninth Circuit? Why not pick a border case from the Fifth Circuit?
9.22.2005 5:35pm
Some Jarhead:
You ask if this isn't a "rather off argument"; well it isn't odd at all if you consider that the Ninth Circuit, as one of the few remaining Liberal enclaves of any significance, considers itself to be more adept at resolving Constitutional questions than the Supreme Court (except in those exceptionally rare cases where the Supreme Court upholds a Ninth Circus decision, of course).

It is not unusual for people with superiority complexes and an inability to inwardly reflect to - how do I put this nicely - go off the deep end...
9.22.2005 6:03pm
RE: Fabian's point,

By 'manufacturing test cases' Fabian referred to the DOJ's purposefully omitting evidence of reasonable suspicion during appeal, rather than the initial prosecution as Orin suggests. This omission guaranteed that the Ninth couldn't uphold the search on their own precedent and would have to choose either toeing the Flores line or risking another reversal. In my (rather uniformed) view, this seems like good litigation strategy: by refusing to let the 9th circuit avoid Flores the DOJ forces them to define its limits; and of course the Feds can always appeal if they don't like those limits.
9.22.2005 7:13pm
Bryan DB:
Why the 9th Circuit? It seems like the 9th Cir and SCOTUS are to the point of personal animosity, and almost every case brought from the 9th to SCOTUS gets overturned.
If you want to push the limits of the test, why not bring it in the 9th Cir, when it seems there's a good chance that what you want to do will be overturned by the 9th and upheld by SCOTUS (whether legal or not) thus establishing the precedent you want for the future?
I apologize for the cynicism, but I'm in 42USC1983's camp on the 9th and the 4th Amendment.
9.22.2005 7:17pm
John Lederer (mail):
If they take the vehicle apart and don't find drugs, do they put it back together?
9.23.2005 9:40am

Jaims captured my view. To my eye the Court's distaste has little to do with what "precedent" is appropriately used. It is black-letter 4th amendment law that the Government enjoys more freedom to conduct a warantless search with a reasonable suspicion than without. In each of these cases, the government clearly had such a suspicion. What it decided to do, however, was to risk the exclusion of the evidence altogether by refusing to prove such a suspicion. Why did it do that? The Court's conclusion -- a reasonable one -- is that the Government is playing games to test the limits of the Supreme Court's holding.
9.23.2005 10:20am

You write: "It is black-letter 4th amendment law that the Government enjoys more freedom to conduct a warantless search with a reasonable suspicion than without."

I look at this differently. In my view, the "black-letter law" is that the government does not need reasonable suspicion in a border search of a car, at least in most situations. See Flores-Montano. Isn't the question whether the government should be criticized for relying on blackletter law in the form of the Flores-Montano case?
9.23.2005 1:53pm
T. Gracchus (mail):
Based solely on the excerpts, it looks to me that Fletcher is concerned about the level of destruction involved in the search, not the search. That complaint makes sense if the Supreme Court decision did not permit complete disassembly or fully destructive searches. Haven't read the cases so don't have a view on the last. Assuming not, then there is something to her complaint, but how much I do not venture.
9.23.2005 2:56pm
M. Simon (mail) (www):
It looks to me from what little I know about the law that the DOJ islooking for more Drug War opportunities to shred the Fourth Amendment.

If you go back into the history of the country and study the case of the sloop "Liberty" run by John Hanncock and its run in with British revenuers in support of British mecantilist policies you will see where the Fourth Amendment in part originated.

We have a similat mercatilist policy in support of the pharmaceutical, alcohol, and tobacco companies of keeping competing products which are easy to manufacture off the market.

For this very reason Benjamin Rush an MD of the time and signer of the Constitution thought medical liberty ought to be written into the Constitutiion to prevent Doctors and pharmaceutical companies from becoming monopolists. Which in fact has happened. The goal of bringing herbal medicine and vitamins under the control of the FDA is also in furtherance of this mercatilists/monopolist policy.

The reson medical costs are so high is that government controls who can enter the market through a series of "health and safety" regulations. In other words government is not just interested in an informed consumer which the initial regulations provided for. The government now controls entry into the market through control of the medical guild and the pharmaceutical industry.

It was just such restraint of trade that the Fourth Amendment was aimed at.

The Fourth Amendment was in fact a limit on the taxing power of the state by giving smugglers an advantage. If taxes are low smuggling is not profitable. High taxes forces the state to become intrusive in its searches.

We are in the mess we are in re: Drug Prohibition because we have forgotten what animated the founders: the British mercatilist system of monopoly profits.

The situation we are in today is actually worse. The monopoly on drug importation has been given to criminal gangs. What I like to call Republican Socialism: price supports for criminals.
9.24.2005 11:21am
M. Simon (mail) (www):
I have updated my above comments and added links here:

Testing the Limits of the Law
9.24.2005 1:50pm
If she doesn't like it so much - why did they publish the decision?
9.26.2005 7:18pm
Pat O'Toole (mail):
I'd be happy to answer any questions you have. I was the federal prosecutor handling these cases. In summary, what happened was this. A little over 3 years ago, the Ninth Circuit in a case called Molina-Tarazon held that reasonable suspicion was required before a "nonroutine" border search of disassembling a gas tank could take place. Judge Kozinski's opinion, however, also held that there was reasonable suspicion for the stop. We believed that the "nonroutine" distinction from Montoya de Hernandez was limited to border searches of persons, not property, and therefore that the case was wrongly decided. We filed a motion to have the case reheard en banc, but this was quickly denied. We could not, however, appeal the case to the Supreme Court, because we "prevailed" below. In the meantime, we raised the same issue in Flores-Montano by not making a reasonable suspicion argument and by not establishing reasonable suspicion in the district court. (We did establish, however, that gas tank smuggling accounted for almost 25% of all vehicle drug smuggling (over 1,000 cases a year), and that requiring reasonable suspicion would result in this smuggling method being used even more.) The district court, while disagreeing with Molina-Tarazon, was forced to follow it and suppress the evidence. We then appealed the decision to the Ninth Circuit, which summarily affirmed the suppression order. We then appealed the case to the Supreme Court and won 9-0. The Supreme Court held that the "nonroutine" distinction requiring reasonable suspicion was limited to searches of the person, not property, and that border searches of property can be conducted without reasonable suspicion unless they are "particularly offensive."

Relying on Flores-Montano, we continued to litigate our basic position that border property searches are legal even if "damaging force" is used (and that the remedy for damages is civil, not the exclusion of evidence). We did this not for "game playing," but because it was our interpretion of what the law holds. Given that there are thousands of border smuggling cases each year, it would be a tremendous waste to bring a primary border inspector, a secondary border inspector, and a canine officer to district court to establish reasonable suspicion, when this is not required under the law. We also did not want to provide law enforcement sensitive "dog discovery" to establish the reliablity of the detector dog (which is also required by the Ninth Circuit to establish reasonable suspicion).

I have tremendous respect for Judge Fletcher. In this instance, however, I think her criticism was not completely fair. I can see reasonable disagreement on the merits of our "litigation strategy," but it was never "game playing." The government had good policy reasons for adopting this policy, and I'm gratified to see that this border search issue has finally been resolved.
9.27.2005 9:15pm